Photo: One of many pollinator-friendly yards in the City of Madison, as depicted by the city’s Pollinator Protection Task Force Report. Photo by Ledell Zellers.
By Janette Rosenbaum
During the time that this series was being published, Madison did in fact reform its landscape ordinances. For the first time since 1978, Madison updated its regulations pertaining to “natural lawns”.
Natural lawns – now referred to as “natural landscapes” – are defined by the city as residential yards in which grasses exceed eight inches in height. This category includes yards that are entirely landscaped with prairie plantings, yards that have a single ornamental clump of tall grass, and everything in between.
Previously, all yards in this category were required to obtain a permit. Without a permit, grass in excess of eight inches was a violation of the ordinances. As noted in previous articles in this series, many people in Madison have tall grass in their yard, while few have ever obtained – or even attempted to obtain – a permit.
As described in Part 2 of this series, Madison knew at the time the permit requirement was created that tall grass does not attract rats, hurt property values, or cause any of the other negative impacts commonly attributed to it. Still, the 1976 effort to completely eliminate a ban on tall grass failed due to the concerns of those who continued to believe in tall grass’s bad rap.
Today, Madison recognizes that banning tall grass – and thus virtually requiring fossil-fuel-powered mowing, fertilizers, pesticides, and all the other maintenance practices associated with lawns – interferes with the city’s goal of being more sustainable and more environmentally friendly. Specifically, making it difficult for property owners to establish prairie plantings, by requiring them to go through an onerous permitting process, presents an obstacle to the goal of protecting pollinators, which the city declared to be an urgent priority in the fall of 2015.
Still, the workgroup charged with taking action to protect pollinators failed to fully legalize tall grass. Instead, on January 3, 2017, the City of Madison adopted a limited revision to the natural landscapes ordinances that says the following:
Supporters of the revised ordinance say that this change will make it easier for property owners to legally have natural yards. Others who were hoping for a more progressive update, however, have several concerns about the new rules.
First, the exemption to the permit requirement only helps property owners who have – or who would like to have – small natural plantings. Almost no one in this category currently has a permit, and almost none of them have been prosecuted for not having a permit. Eliminating the permit requirement for small natural plantings helps almost no one, while still leaving property owners with full natural yards vulnerable to prosecution.
Second, enforcement of the new ordinance would require Building Inspection employees to calculate what percentage of a yard is occupied by a natural planting. Although Building Inspection Director George Hank stated, at a city meeting where the proposed revision was being discussed, that his employees were good at math, those employees have stated to the author of this article that they often rely on eyeballing rather than measuring when determining the size and location of plants. If inspectors take that approach to the new ordinance, property owners could be forced to go to court to argue that their planting is in fact smaller than the percentage limit.
In addition, the aspect of the ordinance that allows only certain grass species to bypass the permit requirement depends on inspectors being able to accurately identify grass species. In previous cases, Building Inspection employees have been unfamiliar with native species, and have described natural yards as containing a “significant number of plants [they] couldn’t identify.” Again, a property owner could be falsely accused of not meeting the requirements for the permit exemption, and would then be forced to convince a judge that their grass belongs to the exempted species.
Third, given Building Inspection’s history of enforcing ordinances arbitrarily – as described in previous articles – it is not hard to see how the new ordinance could be misconstrued to mean that even with a permit, a property owner cannot have grass species other than those listed as allowable without a permit. The new section of the ordinance also requires tall grasses to be set back at least five feet from property lines – a requirement that could be inappropriately applied to those who have permits, who currently must provide a setback of only three feet, or none at all with the permission of the adjoining neighbor.
Clearly it is not the intention of the new ordinance to be more restrictive than the old one, but the confusing wording, along with the structure of exemptions to exemptions, could again force property owners to go to court to sort out which requirements apply to the type of yard that they have. The simple solution: stop imposing onerous regulations on grass, and allow property owners to landscape their yards with the most harmless and regionally-appropriate of plants.
Photo: The view from the site where the City of Madison has approved a low income housing development, with substantial city funding.
Click here for a brief taste of what people at this housing will see and hear from their apartments.
Waste trucks visit the Madison-Kipp Fair Oaks factory almost daily to suck up thousands of gallons of toxic wastes from aluminum melting and die casting processes and haul them away. Many of the same toxic chemicals, their combusted byproducts, metals and small particulates are emitted—unfiltered—from the factory stacks and open bay doors.
Would you want to see this out your living room window every day? To hear this noise every day? To smell and breathe the air emitted from these stacks, vents and trucks every day? Would you want your children to breathe this air?
We doubt that many Madison alders, public health officials, and other city decision makers could honestly answer YES to these questions. So why do they think it’s OK for low income and homeless Madisonians to live there?
The Madison Common Council has already approved $1.3 million in city funding for this housing project. On Tuesday, Feb. 28, alders will vote on whether to further support the project with $343,000 of Tax Incremental Financing (TIF) funds. See our comments–along with many Kipp neighborhood residents as co-signers–to the Madison Common Council here.
Please email Madison alders (email@example.com) and Mayor Paul Soglin (PSoglin@cityofmadison.com) and ask them not to approve TIF funding for this project. Ask them where they live. Ask them to consider, honestly, if they would live in these apartments. As them to consider whether they assume different quality of life standards for less privileged people than for themselves.
Everyone deserves a safe and healthy home.
Photo: Tim Wong’s bush has grown next to his neighbor’s driveway for over 20 years without causing any problem.
By Janette Rosenbaum
The first two parts of this series reviewed how Madison’s vegetation ordinances came to be, whether they are benefitting the public, and how enforcement of them might be reformed. This third part examines a specific case of enforcement.
Tim Wong is a member of the Schenks-Atwood-Starkweather-Yahara (SASY) neighborhood association, which conducted the violation survey described in Part 1 of this article. He is also one of the residents of that neighborhood who received complaints about his yard.
Wong quickly resolved the complaint, which regarded flowers in his terrace being too tall. Then, Building Inspection (BI) supervisor Kyle Bunnow came to his property to “make sure he understood the rules”. During that visit, Bunnow pointed to a bush in a vision triangle in Wong’s yard, which had existed in that location for over 20 years without issue, and declared, “That has to go.”
The case ended up in court, where Bunnow constructed the following story in his testimony: Suppose that a car is backing out of an adjacent driveway, while a child is approaching on the sidewalk. The motorist and pedestrian do not see each other, because of the bush, and tragedy results.
This hypothetical danger ignores the following facts: First, Wong does not own a motor vehicle and has a tree growing in his driveway. The neighbor’s driveway, which more closely abuts the bush, is occupied by a picnic table most of the year; the neighbors only park vehicles in their driveway during winter, when the leafless bush is nearly transparent. Second, another of Wong’s neighbors testified that she has never seen any motor vehicle in Wong’s driveway. Third, as described in Part 2 of this article, almost no motor vehicle accidents anywhere have been attributed to the presence of a plant.
It is thus extremely doubtful that the destruction of Wong’s bush would result in any benefit to traffic safety – or to public health, safety, welfare, or morals more generally. Another feature of Wong’s case — to which we shall return in a moment — also illustrates the questionable legal grounds on which Madison’s vegetation ordinances are enforced.
The Fourteenth Amendment of the United States Constitution states that all citizens must be treated equally under the law. Harvey Jacobs, an expert on property rights and professor at the University of Wisconsin-Madison, explains how this relates to a citizen’s use of their private property: Use of private property is controlled by local zoning laws, but because people own property in different zones, they do not all have the same rights as to how they can use their property. In the 1920’s, the Supreme Court ruled that this is not a violation of the Fourteenth Amendment, so long as everyone owning property in the same type of zone is subject to the same restrictions on the use of their property.
To return to our main topic, this should mean that Madison’s vegetation ordinances are acceptable under the Fourteenth Amendment, so long as everyone in the same neighborhood is held to the same standards. But to return to the case of Mr. Wong, this does not appear to be how enforcement is handled.
During that meeting with Supervisor Bunnow, Wong pointed to a bush on a neighboring property, which was clearly overhanging the sidewalk. Although this is a violation of the ordinances, Bunnow stated that he “had no problem” with it. It thus does not appear as though Wong and his neighbor were treated equally.
The Fourteenth Amendment sometimes allows for inequal treatment based on special circumstances; perhaps one of those exceptions applies here. Some examples of valid inequal treatment are as follows: One restaurant might be allowed to serve alcohol on their premises, while another restaurant in the same neighborhood is not, on the basis of only the first restaurant possessing a liquor license. Or, a residential property owner might receive special permission to violate setback ordinances due to their property having unusual topography.
The inequal treatment of Wong and his neighbor might be valid if, for example, the neighbor had a natural yard permit. This permit allows Madison residents to be subject to a somewhat more lenient set of vegetation ordinances. However, since the permit exception was created several decades ago, the city has issued perhaps 100 such permits. This is hardly enough to cover all the violations in the SASY neighborhood, let alone the many yards all across the city that are only in compliance with the ordinances if they have a permit. It is thus unlikely that Wong’s neighbor has a permit.
It is also possible that Wong’s neighbor had not received any complaint about their property. However, this does not seem like a reasonable criterion on which to discriminate between Wong and his neighbor. Neither bush had received a complaint (remember that Wong’s complaints were about another aspect of his property, which he addressed), and at any rate it is doubtful that any of the complaints in the neighborhood reflected a valid use of the police power to begin with.
Third, it could be the case that the discrimination reflected intelligent enforcement of the ordinances – that is, Wong’s bush was judged to be an actual hazard, while the neighbor’s bush was not. However, as described above, there is very little evidence that Wong’s bush was in any way endangering anyone.
In conclusion, the ordinances must be enforced through fair and reasonable criteria, so that true safety hazards are addressed while technical violations are left alone. The current enforcement practices do not support this goal. While the city may not have the resources to find and resolve all true safety hazards, shifting resources away from the senseless prosecution of technical violations would surely help to address the shortfall.
Photo: Madison-Kipp raingarden in August 2014; behind it, Kipp was building a new curb and fence and paving parking lots, without the required approval and permits. MGE was digging around transformers, with dirt all over the parking lot, draining into the raingarden…
This past summer, we asked city officials if they had tested for PCBs in the Kipp raingarden, which the company leases from the city. This testing was required by their city lease, signed in June 2015. Over a year later, in mid-October 2016 (in response to our repeated queries?) the city finally tested for PCBs in the raingarden. So the city lease was violated from June 2015 to June 2016, and city officials apparently didn’t mind. Would they have even tested if citizens didn’t ask about it?
On November 17, 2016 John Hausbeck from Public Health Madison Dane County (PHMDC) informed city and state officials that the October tests found 7 ppm (mg/kg) of PCBs in shallow soils about 18 inches from the stormwater pipe that drains into the raingarden from the Kipp site–see map and results. This level is nearly ten times above the allowed industrial “residual contaminant level” (RCL) that city and state officials agreed to use for this area (0.74 ppm)–and over 30 times the residential RCLs (0.22 ppm) that are more appropriate for this public area, which is zoned residential. The reasons government officials decided to use industrial standards for this area–and who actually made these decisions–are not clear (see below).
Where did these PCBs come from since the last time the raingarden was tested—in May 2014? Perhaps this timeline and photos can provide some clues…
The city lease says that if contamination is found in the raingarden, “the Lessee” (which is Kipp) “shall also determine the source of the contamination…” Hausbeck speculated on the sources: “It is not clear where these PCBs have come from…All the samples were collected in the top one foot, so they should all represent clean topsoil.” He listed some possible sources. “They may have been carried by storm water into the rain garden from adjacent excavations, or come from contaminated sediment that entered the storm sewer pipe from breaks that were later fixed. Both of these potential sources were stopped last year and are no longer adding PCBs to the rain garden.” Was he referring to this pipe?
The “hotspot” found in October will be excavated at some point in the future, and further tests will be done. Will warning signs be placed along the bike path during excavations? Citizens asked that warning signs be placed along the path before and during past PCB excavations, so people could avoid the area if they wanted—and warn children not to play there—but the city refused, due to concerns about their legal liabilities. Neighbors posted their own signs, which were taken down the next day.
Why aren’t residential PCB standards being used? Did the DNR closure supercede the city lease? Who made these decisions?
Sadly, city and state officials have chosen not to err on the side of protecting the public in their decisions about what RCLs to use. Neighbors and other community members have argued repeatedly since the PCBs were discovered that the city should use the lower, more protective residential RCLs for the raingarden and the grassy area along the bike path, in line with DNR policy (again, see footnote 1). But apparently citizens’ input about how much toxic contamination should remain on public land does not matter to our government officials.
Oddly, in March 2015, Kipp and DNR agreed on residential standards for the area long the bike path, but something changed after that. The DNR has leeway to ask for an even more stringent RCL for such areas—and some experts think that would be appropriate for this heavily-used public area next to a community center, a children’s splash pad, a compost area, and many homes (see footnotes).,. The city, which owns the raingarden and bike path areas, also presumably has the authority to ask that a lower RCL be used.
In fact, Kipp’s final lease with the city says the following, on pg. 5:
“The City shall, in consultation with the Lessee, conduct periodic sampling of the Biobasin for new environmental contamination. If the annual environmental sampling indicates new PCB contamination to the Biobasin, the Lessee shall remediate the contamination according to local, State, and federal standards… New contamination shall be defined as shallow soil sample results above the DNR residential direct contact standard (RCL) for PCBs.”
Confusing matters further, as far as the city-owned Kipp driveway area next to the PCB-contaminated ditch along the bike path, the lease requires cleanup to residential standards in the future; it says on pg. 2: “WHEREAS, the DNR, the City and the Lessee have agreed that the Parking Improvements shall serve as an environmental cap throughout the remainder of the Lease term, and any further renewals or extensions thereof, and that upon the expiration or termination of the Lease the Lessee shall remove the Parking Improvements, remediate the contaminated soil to the DNR approved, site-specific, nonindustrial (residential) direct contact standard, and restore the Leased Premises as hereinafter provided, unless otherwise agreed to by the City and DNR.”
So why is the city only requiring cleanup to industrial standards in the raingarden and along the grassy areas next to the bike path? Was the change to industrial standards “agreed to by the City and DNR” in the months between when the lease was signed and the DNR closure was approved? Did the DNR closure of the raingarden and bike path areas supercede the city lease?
Three months ago, we asked city officials to explain this, but have not received a response.
Why was closure granted without testing? Why isn’t stormwater from Kipp tested?
In June 2016, after Kipp asked for “closure” for the raingarden and bikepath areas, I asked DNR officials Linda Hanefeld and Mike Schmoller how they knew the raingarden wasn’t re-contaminated since May 2014. They didn’t respond. The DNR South Central Closure Committee, which Hanefeld and Schmoller are both on, approved closure for the area in July 2016.
This sad saga raises many questions about city and DNR decisionmaking and whose interests they serve. Wouldn’t it have been a better idea to test raingarden soils after all the excavations were done, before leasing the area to Kipp, and before approving closure? Doesn’t it seem like common sense—as citizens have asked repeatedly for years, to no avail—to periodically test the stormwater draining from Kipp into the raingarden to make sure this water is not re-contaminating the soils there? Apparently, according to the “common sense” of city and state regulators, NO.
Shouldn’t the citizens our city, county, and state government officials serve have some say in these decisions?
 DNR NR 720 says “Responsible parties shall classify the land use of a site or facility as industrial if all of the following criteria are met: 1. The site or facility is currently zoned for, or otherwise officially designated for, industrial use. 2. More stringent non−industrial residual contaminant levels for soil are not necessary to protect public health on or off the site or facility. Note: Situations where a non−industrial classification would apply include site or facilities which could otherwise be classified as industrial, but where proximity to non−industrial land use, such as residential housing located across the street, makes a non−industrial classification more appropriate.” (emphasis added)
 A memo from Kipp’s consultant Arcadis to Schmoller dated March 13, 2015 said that the grassy area on city property along the bike path would be considered residential– and residential RCLs would be used.
 “November 2014 USEPA – DNR agreement on PCB cleanup,” says “EPA may require a cover or a cleanup to more stringent cleanup levels than are otherwise required based on the proximity to areas such as residential dwellings, hospitals, schools, nursing homes, playgrounds, etc.” and “depending on the form or isomer of PCB, the RCL for non-industrial sites without a cover can be as low as 0.0000341 mg/kg.” City and state agencies should be requiring PCB congener testing, but they refuse to do so.
Above: The city has prioritized replacing a paved segment of terrace with grass, over repairing a pothole where children slip on ice (see story below).
MEJO introduction to series:
City of Madison ordinances, or lack thereof, reflect the city’s priorities in regards to public and environmental health and safety. The city’s over-enforcement of some ordinances—while others are rampantly violated with no consequences—also says a lot about city priorities.
In our environmental justice work in Madison, we have learned that the city—in spite of years of citizen pressure to do so—will not improve its weak noise ordinance, largely due to business and industry resistance. The existing noise ordinance is regularly violated, with no consequences to violators; some are actually rewarded. An industry can spill high levels of PCBs along city bike paths, and the city has no obligation to notify path users of their presence. There’s no ordinance on that. So the city, or someone else, could spill toxic chemicals on the sidewalk in front of your house and the city has no legal obligation to notify you, your neighbors, or the public who use it. City pesticide and stormwater laws are rampantly violated, and the city looks the other way—a long story in itself. The list goes on…
Meanwhile, the city issues citations to some citizens for violating the city’s absurd and obsolete residential yard laws—while ignoring thousands of others who violate it. Below, we share another story by Janette Rosenbaum about over-enforcement of city ordinances and punishment of a resident who was just trying to do the right thing.
Resident Makes Repairs to Property, Asks City to Do Likewise – Ends Up Prosecuted
By Janette Rosenbaum
Bennett Ramage didn’t expect to be charged with violations of city ordinances for trying to improve his property.
Ramage bought a rundown home on Ravenswood Road, on Madison’s southwest side, about two and a half years ago. In short order, he set about making much-needed repairs.
A year into this to-do list, he contacted the city to report a low spot along the curb in front of his house. He had noticed that the dip in the pavement tended to fill with water, and that this was especially problematic in the winter, when kids walking to and from school slid on the ice while trying to cross the street
The city didn’t respond to Ramage’s request for repairs. Eventually, frustrated by the lack of action, Ramage asked his alder, Matt Phair, for help.
In mid-September of this year, city inspector Bill McGuin finally came to look at the problem. Ramage explained his concerns, but McGuin didn’t feel the icy patch was a hazard, and said the city would not fix it.
Ramage can hire a contractor himself to repair the pavement, McGuin said, and the city would pay some of the costs of the work. But, any contractor chosen by Ramage would need to be approved by the city before work could be done, and after the pavement is fixed, if an inspection finds that the work is not up to the city’s standards, Ramage would be responsible for re-fixing it.
Ramage was disappointed by the outcome of this meeting, but he was astonished when, a week later, he received a letter from McGuin citing him for violations of city building code. The letter listed several issues.
First, McGuin had noted that a fence Ramage had recently installed along his backyard was exceeding height limits. Ramage has fixed the problem, and is awaiting re-inspection.
Second, the letter stated that Ramage’s driveway does not meet current requirements. The driveway, which extends beyond the edge of the house, has terrace and curb in front of this extra portion, instead of a widened apron. The section of terrace in front of the driveway is paved instead of grassed (see photo below).
Ramage says all of that is left over from the previous homeowner, who did not disclose the violation when they sold the property, probably because they didn’t know their driveway was illegal. Ramage is working on breaking up the pavement in the terrace, and plans to seed the area with grass.
The issue of the driveway itself is more complicated. The extra width is legal if it leads to an 8×18 parking spot alongside the house, according to city ordinances. Adding the parking spot would require Ramage to move his fence, and install additional gravel or pavement.
Ramage also could tear up the nonconforming asphalt, but this would leave him with insufficient parking. He could park in the street, but said it would look bad and create a hazard, while the widened driveway doesn’t seem to be hurting anybody.
In investigating the issue, Ramage found that his driveway is legal if it was widened prior to 1993, when the current ordinance went into effect. The city agrees with this, but says it’s Ramage’s responsibility to prove the age of the driveway.
Ramage was able to contact the previous owner of the house, who says the driveway was widened in 1992. No photos have turned up, though, and the city may not accept a statement unsupported by documentary evidence.
The previous owner also told Ramage that the low spot in the street was originally caused by an overloaded city truck riding too close to the curb.
Ramage plans to pursue the grandfathering exemption for the driveway. If that fails, he says he’ll install the extra parking spot.
The amount of work Ramage has put into the property is obvious. The kitchen looks like new, and even the garage appears to have been redone. Ramage says neighbors have been happy to see the house getting needed repairs. No one had complained about the violations McGuin cited, nor has the city claimed that any of the violations were creating a public hazard.
Ramage doesn’t mind adding the city’s requests to his to-do list, but can’t believe the citations were issued in the first place, apparently as punishment for asking the city to fix a problem in the public street.
Addendum 1, November 19 2016: Following a re-inspection, the city agreed that Ramage’s fence and terrace are in compliance. However, the city did not accept a signed, notarized affidavit from the previous homeowner, stating that the driveway was at its current width since 1992, as evidence that the driveway qualifies for the grandfathering exemption. The city continues to demand that Ramage either narrow the driveway or add the legal parking spot, and that he submit a highly-detailed plan, which must be approved by the city before any work can begin. Ramage is now consulting with a real estate attorney to explore other options.
Ramage is not the only Madison resident with a story like this. While citations are issued much too rarely to constitute consistent enforcement of the ordinances, they are issued often enough to look like a pattern of targeting specific residents – often those who, like Ramage, called attention to themselves by making a request of local officials. Calling out this behavior on the part of the city can lead to further harassment. One property owner who was targeted declined to talk to me, fearing retaliation by city inspectors.
Have a similar story to share? Contact firstname.lastname@example.org.